Wired - December 12, 2001

New Suit Targets Obscenity Law

A national organization that promotes sexual tolerance and an artist who photographs pictures of couples engaged in sadomasochism filed a lawsuit Tuesday seeking to overturn Internet obscenity laws.

The National Coalition for Sexual Freedom and photographer Barbara Nitke argue that the obscenity provision of the Communications Decency Act (CDA) is so broad that it violates free speech.

The suit, filed in the U.S. District Court for the Southern District of New York, names as plaintiffs Attorney General John Ashcroft and the U.S. government, and aims to blot out the remaining censorship provisions of the CDA, a measure passed to protect minors from online pornography. Violators of the act face fines of up to $250,000 and two years in prison.

The CDA was first attacked in the 1997 case Reno v. ACLU, when the Supreme Court struck down provisions related to indecency, ruling that the law harmed constitutionally protected free speech.

The act's obscenity provisions are targeted by the new challenge.

The murky semantics of the terms "obscenity" and "indecency" have long been the bane of First Amendment lawyers. (For the ACLU's take on the debate, click here).

The CDA defined indecent material as "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." The Supreme Court ruled in the Reno v. ACLU case that this broad definition unfairly criminalized speech about a variety of benign topics related to sexual health, such as contraception.

The Supreme Court ruled that obscene speech -- which is not protected by the First Amendment -- must meet the following three criteria: 1) it must be prurient in nature, 2) it must be completely devoid of scientific, political, educational or social value, and 3) it must violate local community standards.

The lawsuit filed Tuesday claims that the obscenity provision outlined in Section 502 of the CDA is so vague and arbitrary that it could violate speech that should be protected.

The sticky words here are the so-called "local community standards," said John F. Wirenius, the plaintiffs' legal counsel and an attorney for civil rights firm Leeds, Morelli & Brown.

"Obscenity is unprotected speech, but not all material is obscene from jurisdiction to jurisdiction," said Wirenius. "Material may be considered obscene in Utah, for example, but not in New York. Whose standards are supposed to be applied to the Internet?"

His clients fear that their content will be judged by the most conservative standards, making them vulnerable to obscenity charges.

"Most people don't realize that one of the most strident censorship provisions of the CDA is still in place," said Susan Wright, spokeswoman for the National Coalition for Sexual Freedom. "The CDA is still having a chilling effect on Americans who operate websites -- they either have to resort to self-censorship or risk prosecution."

Wright, who said her coalition has 10,000 members from alternative sexual groups, insisted the material produced by her organization was not obscene but that it could be considered so in certain Bible-banging realms of the country.

Plaintiff Barbara Nitke said the Internet is one of the few places where she can exhibit her controversial photographs and worried that this venue might soon be closed to her.

"I strongly believe that people who want to see my work or the type of work I do by other artists should have the right to do so," said Nitke. "But I feel this act will be used against me eventually and that worries me."

But others said the quest to overturn the CDA is a long shot.

Previous First Amendment challenges to obscenity laws have failed in court, said Miriam More, a legal policy analyst for the conservative Family Research Council, which blames pornography for crimes ranging from rape to assault.

Conservative groups such as the FRC do not see the merit of the content produced by sites such as the coalition, and regard their material as porn, plain and simple.

"Obscenity laws should be upheld on the Internet for the same reason they're upheld elsewhere," said More. "When the pornography industry is left unregulated, it keeps pushing to see how far they can go. They never say 'We've done Anal Gangbang One so we don't need to do Farm Gang Bang.'Â The laws need to be enforced."

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